, Newburyport, MA

July 9, 2013

Ex-selectmen files complaint against town board


---- — WEST NEWBURY – Tom Atwood, former selectman and the newest member of the Board of Assessors, has lodged a formal complaint against the town’s Conservation Agent and put elected officials on the Conservation Commission on notice as well.

Atwood attended a selectmen’s meeting last week to follow up on the complaint, which involves an incident at his Hilltop Circle home at the end of June. He charges

that Conservation Agent Jay Smith illegally trespassed on his property and behaved in a rude and harassing manner toward him.

Atwood pushed for selectmen to set a date for a personnel hearing, saying he hopes it will be an opportunity for positive change. He feels the town needs a better defined policy on when and how town employees and officials can visit a private citizen’s property, what their attitude should be while working with the public, and what their knowledge level of state and town bylaws should be.

Selectmen unanimously voted to set the hearing for July 29 at 7 p.m. Atwood and his attorney also scheduled a meeting with the Conservation Commission for July 15 at 7:30 p.m.

Because she wasn’t present at Atwood’s property on the day of the incident and has subsequently learned that Atwood has hired legal representation, Conservation Commission Chairman Dawne Fusco was hesitant when reached to comment about his encounter with Smith.

But she did say that in all her years working closely on conservation issue with Smith and the two commissioners named in Atwood’s complaint -- Judy Mizner and Wendy Reed -- she has never seen any of them treat the public rudely.

She said by definition the conservation board isn’t always the most popular committee in town because they often have to regulate how people use their property.

But over the years she and the rest of the board have found ways to diffuse tense situations.

“We do site walks all the time,” Fusco noted, adding “I do know that Jay (Smith) was very upset with whatever was said to him on that site walk.”

According to a statement submitted by Atwood to the West Newbury Police Department, Smith entered the resident’s property around 9:30 a.m. on Sunday, June 23 and immediately began taking pictures. Atwood said that when he informed Smith that he was trespassing and asked him to leave, the encounter turned nasty.

“Mr. Smith was belligerent in his attitude and tone. He stated that he had been checking a project up the street and noticed the work currently being done at my home. He said I was violating the wetlands perimeter,” Atwood wrote. But the homeowner insisted that there was never any wetland delineation on the subdivision plans for that area – a point he feels is validated by the fact that the Conservation Commission placed no restrictions on the subsequent construction of an additional room in his home in the 1990s. The new room fell within 40 feet of what Smith has identified as wetlands –- considerably less than the 100 feet perimeter beyond the wetlands that is by law required for construction, Atwood notes.

Atwood contends he had simply “cleared trees that had fallen and hit my home during Hurricane Sandy” and removed others that were poised to fall onto his house. But he says Smith insisted no work should be done on either side of the property without approval from the Conservation Commission – not even removal of trees that posed a danger to his home.

The statement noted an area of Woodcrest Drive -- a road adjacent to Hilltop Circle -- on which a municipal pipe is dumping water onto Atwood’s property and likely compromising the integrity of the trees. Atwood notes that the pipe flow is in violation of town bylaws and that in 2005 the town was given proper notice to move

the pipe, but the project remains incomplete.

A few minutes after his initial encounter with Smith, Atwood reports that Mizner and Reed arrived.

“Evidently this was a planned meeting without proper verbal or written notice to my wife or me as property owners,” he wrote. He noted that Smith “became more cooperative and balanced” when the commissioners arrived. According to Atwood the meeting concluded with Mizner agreeing to research the issues regarding the Woodcrest Drive subdivision and the way drainage coming from it was impacting Atwood’s property.

Following the encounter, Atwood sent Smith a notice of No Trespassing via registered mail on June 24. Similar letters were issued to each member of the Conservation Commission.

The presence of any of them on his property constitutes a trespass, Atwood’s letter states. “You are further on notice that a violation of this notice may result in your immediate arrest and a complaint issuing again you in court,” he wrote. He filed a copy of the letters -- along with the certified registered mail receipts -- with the police department.

On June 26, the Conservation Commission issued Atwood a letter stating it would discuss the letter and issues raised – along with “your apparent work in the buffer zone and/or wetland resource areas without an Order of Conditions or Determination of Applicability” -- at its July 1 meeting.

But when Mizner was asked about the discussion over the weekend, Mizner responded that the discussion had been continued until the next board meeting at the request of Atwood and his attorney. Smith could not be reached for comment last week.